Volume 10 — Rhode Island Reports

<p>Assumpsit against tbe defendant as accommodation indorser of two promissory notes of one Samuel Hallett for $3,000 and $2,000 respectively; and of a draft of Seymour, Moore & Co. for $10,000. A jury trial having been waived the case was heard by the court both on facts and law, when it appeared that the notes and acceptance came to the hands of the plaintiff under the following circumstances: —</p> <p>On the 26th of December, 1856, Samuel Hallett, of New York, borrowed of Rowland G. Hazard certain railroad bonds, giving in pledge, as collateral security for the return of the bonds, the notes and acceptances declared on, upon the following written agreement:</p> <p>Borrowed and received of R. G. Hazard this 26th day of December, 1856, at Peacedale, Rhode Island, five first mortgage bonds of the La Crosse and Milwaukee Railroad Company, dated in Milwaukee July 1st, 1854, and payable in twenty years after-date, each for one thousand dollars, with interest at eight percent. per annum, payable semi-annually 1st of November and 1st of May; also twenty bonds of the Milwaukee and Mississippi Railroad Company, dated April 1st, 1854, and payable April 1st, 1859, each for five hundred (500) dollars, with interest at seven per cent, per annum, payable semi-annually on the 1st of April and 1st of October — say total amount of said bonds fifteen thousand (15,000) dollars, which said bonds I promise to return to said Hazard or his assigns in six months from this date, and pay him or them or his assigns the interest which in the mean time shall become due upon said bonds, and on the days it becomes due, the said Hazard or his assigns on my returning the same (and paying the interest) as aforesaid, to refund to me the securities I have placed in his hands for the loan of the same, viz., Seymour, Moore & Co.’s draft at six months from August 14, 1856, accepted by Thomas Dugan, Treasurer, payable at Metropolitan Bank in the city of New York, for ten thousand (10,000) dollars, indorsed by Samuel Hallett and John Thompson (it being agreed that this draft may be exchanged for equal value of same paper payable in six months from its maturity), also my two notes at six months from this date indorsed «by F. M. McDowell and John Thompson for the sums of three thousand and two thousand dollars, or the amount thereof in money. »</p> <p>(Signed) Samuel Hallett. .</p> <p>On the 26th day of June, 1857, Hazard, at New York, at Hallett & Co.’s office, demanded of Hallett’s agent and partner, McDowell, ■ return of the bonds, and tendered back the securities. August 20, notice was served on Hallett in the same manner that the notes pledged would be sold by A. B. Dike at public auction at Providence, August 28. Thompson saw this notice at Hallett’s office. The sale was adjourned to September 7, and the notes and acceptance then sold to the plaintiff. The notes and acceptance pledged fell due before the notice to sell was given. The sale was advertised in the Providence Journal ten days, describing the notes and acceptance.</p> <p>The plaintiff had a right to sell, by the terms of the pledge, and had a right to sell even independent of the agreement. As to the general right to sell a pledge at public auction after default and notice, until the case of Wheeler v. Newbould, 16 N. Y. 392, the right so to sell a pledged note was never doubted. Kent Com. vol. 2, p. 582; vol. 4, p. 139 ; Story on Bailments, and Smith’s Lead. Cas. up to Wheeler v. Newbould, treated the right to sell as applying to all pledges without distinction. In all the cases up to Wheeler v. Newbould, the right to sell at public auction was never disputed. There are cases of notes where the sale has been held illegal for want of notice, selling privately, or other reasons, but none where the right to sell at public auction was disputed. Tuelcer v. Wilson, 1 P. Wms. 261; Pothonier v. Dawson, Holt N. P. 385; Oortelyou v. Lansing, 2 Caines Cas. -in Er. 200; Hart v. Tew Eyclc, 2 Johns. Ch. 100; Evans v. Darlington, 5 Bla-ckf. 320 ; Bowman v. Wood, 15 Mass. 534; Grarlick v. James, 12 Johns. 146. •</p> <p>The cases where notes have been pledged have always turned upon some other question. Thayer v. Putnam, 12 Met. 297, was a question of compromising a note for less than pledgor agreed to. ■In Washington Bank v. Lewis, 22 Pick. 24, a bank director took a note to get discounted, and pledged it for his own debt. The question was between the maker and the bank. The case of Powell's administrator v. Henry, 27 Ala. 612, involved a question of diligence, where the pledgee, instead of selling, had undertaken to collect a note. The decision in Wheeler v. Newbould, 16 N. Y. 392, must be considered rather as changing the law than declaring it. It is a- change which if necessary should have been made by the legislature, who might have provided for its taking effect on a certain day and after full knowledge. It would not be attended with the evil retroactive effects of a judicial change of the law.</p> <p>The contract in this case did not contemplate a return of the identical securities; it’ was evidently made on the law as formerly understood, implying a right to sell.</p> <p>As to T. being accommodation indorser. He could have no right as such against Hazard, nor is it in evidence that he ever claimed any rights as such. See Story on Promissory Notes, §§ 190-4, as to notes taken before due; as to notes taken after due, see Thomson v. Shepperd, 12 Met. 311; Eaton v. Qarey, 10 Pick. • 211. Hazard would not probably have made the loan without T.’s indorsement. And from the apparent connection between Thompson and Iiallett, Hazard would have a right to suppose Thompson had an-interest in it.</p> <p>As to a tender and refusal making a conversion. To make a conversion, it should not be a mere offer but a legal tender, and nothing short of it. To make a tender, the person must have the money, and it is not sufficient that there is a person present who is willing to loan it to him. Sargent v. Crraham, 5 N. H. 440. He must produce it unless the production is prevented or waived. Sands v. Lyon, 18 Conn. 18. In the case of a note payable in Arkansas currency, it was held that in case of a note payable in specific articles, it must be met at the day, and that a tender afterwards was not good unless the damages were matter of computation, and could be ascertained without a jury. Day v. Lafferty, 4 Pike, 450. He must keep the money or article so that the other party can take it, and the tender is of no avail otherwise. Slocum v. Petrie, 16 111. 267. He must bring it into court. De Wolf et al. v. Long, 2 Gilman, 679. A tender and refusal revests the pledge. Ratcliff v. Davis, Oro. Jac. 244, and Yelv. 178. But a refusal effects no conversion where the authority is questioned. Ingalls v. Bulldey, 15 111. 224. A conversion must be some act inconsistent with and in defiance of the rights of the true owner. Here there was no tender either of bonds or money. H. never did refuse money for the notes, nor would have done so. He was acting under advice of counsel to keep himself safe.</p> <p>As to place of sale, no hardship in place of sale, although neither party resided in Providence. The contract was made in Rhode Island and to be performed there. T. lived in Rhode Island, and his name was on all the paper. T., as a business man, would be known in Providence,— Providence the only place where there, is a broker’s sale — resorted to from the whole state.</p> <p>contended that the plaintiff acquired no title to the paper declared on and could maintain no suit upon it. I. Because the law of pledge does not authorize the pledgee of commercial paper to sell it at public auction, without a special contract for that purpose, citing G-arlich v. James, 12 Johns. 146 ; Stearns v. Marsh, 4 Denio, 227 ; Wheeler v. Newbould 16 N. Y. 398; Qortelyou v. Lansing, 2 Caines Cas. in Er. 213. There was a special aggravation of the injustice and consequent illegality in this transaction, in selecting Providence as the place of sale, where, none of the parties to the paper resided or were known, or could have had any credit, whether solvent or not. Dycleers v. Allen, 7 Hill, 497. II. Because it was sold without personal notice to the pawner, Hallett, and without the sanction of judicial proceedings. III. Because it was sold after the defendant had offered to redeem.</p>

<p>Bill in equity brought by the complainants praying for an account of a trust estate held by the respondent under a deed of trust from one James Russell Greene, and for a conveyance to the complainant, Polly Greene, of the trust estate, and for the removal of the respondent as trustee.</p> <p>The provisions of the trust deed and the allegations of the bill are sufficiently stated in the opinion of the court.</p> <p>The respondent’s answer admitted the facts charged, and submitted the question to the court whether the complainants were entitled to a conveyance under the trust deed.</p> <p>contended that the estate created by the trust deed, taken in the view most adverse to the complainants, was an equitable estate for life in the widow, and an equitable remainder in fee in Polly Greene and her heirs.</p> <p>If the life tenant so elects, the trust must continue during her life, and Polly Greene could take no beneficial interest until the tenant’s death. But by the R. I. Statutes of estates in real property (Rev. Stat. chap. 145, § 4), the absence of the tenant for life without due proof of her being alive, for seven years, would terminate her tenancy, and the entire estate would vest in Polly Greene. If the widow releases her interest to Polly Greene, or by any instrument which would operate as a discharge of the trustee, disclaims all interest in the estate, would not the remainder then vest in Polly Greene ? To hold otherwise would be to compel an accumulation of the trust fund against the will of all the parties in interest. Yet the case supposed is really the case made by the bill. The life tenant has in fact sold or agreed to sell her life estate, and extinguish her equitable title and interest in the trust property. The sole estate and interest remaining is that of Polly Greene, and the trustee is bound to convey to her on request the trust remaining for him to execute. 1 Cruise Dig. tit. xii. chap. 4,- sec. 6 ; Carteret v. Carteret, 2 P. Wins. 132; Hill on Trustees, 430.</p>

Action of the CASE, alleging negligence and carelessness on the part of the defendants, in the construction of a railroad bridge over the Pawtuxet River, near Natick, R. I. The case was heard by the court upon the facts as reported by the auditor to ■whom it had been referred. The essential parts of his report are stated in the opinion of the court. I. The injury here complained of could not have been included in damages assessed under the defendants’ charter.

<p>An affidavit of a garnishee that, at the time of the attachment, he had not, according to the best of his knowledge and belief, either directly or indirectly, any estate of the defendants in his hands, and that a sum of money received by him on execution in favor of the defendants had been transferred by them to a third party previous to the attachment, held sufficient to discharge him, the plaintiff not having filed any interrogatories requiring further proof of such transfer. Held, reaffirming Noble v. Smith, 6 R. I. 446, that an assignment without this state of a debt bond fide, in payment of a liability, when made prior to an attachment by foreign process of the assigned debt here, will defeat the attachment, although the garnishee had no notice of the assignment previous to the service of the attachment,provided he have notice thereof in time to communicate it seasonably to the court before judgment is obtained.</p>

Trespass on the case, to recover damages for burning the plaintiff’s factory, machinery, &e., through the careless management of the defendants’ locomotive engine.

Bill in equity. The material allegations of the original bill are stated at the commencement of the opinion of the court.

<p>Action of the case, to recover damages of the city of Providence, for injuries caused by filling up the dock of the plaintiff. The case was first tried at the March Term, 1868, of the Supreme Court for this county, and after a verdict rendered in favor of the plaintiff, a new trial was granted at the March Term, 1870, of the Supreme Court for this county (see report of the case, 9 R. I. 455), and the case was again tried at tbe October Term, 1870, of said court for this county, before Mr. Justice Potter and a jury, when, after a verdict in favor of tbe plaintiff for nine thousand dollars, tbe defendants moved for a new trial on the ground that tbe verdict was against the evidence and tbe weight thereof, and for alleged errors on tlie part of tbe judge presiding at the trial in bis instructions to the jury, wbicb are sufficiently stated in the opinion of tbe court.</p> <p>in support of tbe motion, contended that tbe verdict was against the evidence, and also, 1st. That the plaintiff had no right of action against tbe city for constructing and maintaining the sewer described, upon tbe land to which the plaintiff had no title, or for filling up a dock in which the plaintiff had no interest other than that of every one of the public. Parton v. Holland, 19 Johns. 92; Radcliffe, BxW, v. Mayor of Brooklyn, 4 Comst. 195; Callender v. Marsh, 1 Pick. 418; Millard v. Cambridge, 3 Allen, 574 ; McLauchlin v. Charlotte South Car. R. R. Co. 5 Rich. 583, and cases cited; Clark v. Peckham, City Treasurer, 9 R. I. 455; Richardson v. Boston, 19 How. 263 ; S. C. 24 How. 188; Boston v. Lecraw, 17 How. 426. 2d. That the plaintiff could not, under his writ and declaration, recover for special damages sustained by a public nuisance.</p> <p>contended that the verdict was not against the evidence, and also, 1st. That the plaintiff could maintain this action although he showed no title to Dorrance Street or Dorrance Street Dock. Clark v. Peck-ham, City Treasurer, 9 R. I. 455; Richardson v. Boston, 19 How. 263. 2d. That the plaintiff could recover his special and peculiar damages, although occasioned by what was in itself also a public nuisance. Sedgwick on Damages, pp. 29 and 156 ; Clark v. Peckham, City Treasurer, supra; Paterson <$• Newark R. R. Co. v. Stevens, 10 Am. Law Reg. (N. S.) 180; iStetson v. Baxon, 19 Pick. 147. 3d. That the plaintiff could recover although he showed no title to the land lying at the head of the dock. At least as against everybody but the owner of the fee of the land at its head, the plaintiff had the right to have this dock kept open and unmolested for the use of his wharf. Clark v. Peckham, City Treasurer, supra; Simmons v. Mumford, 2 R. I. 172; Marble-head v. County Commissioners, 5 Gray, 451; Richardson v. Boston, supra.</p>

<p>An action in behalf of a person of full age under guardianship, must be brought in the name of the ward by his guardian, and in an action affecting real estate of a married woman whose husband is under guardianship, the husband, by his guardian, must join with the wife in bringing the suit.</p>

<p>An assessment made by the receiver of the Slater Mutual Fire Insurance Company held not invalid because he had assessed for dividends due parties insured in the “ Manufacturers’ Class ” of said company, inasmuch as such dividends being due parties so insured might properly be considered in making up the amount necessary to be assessed to pay all the debts of the company.</p> <p>One liable to assessment in a mutual insurance company canliot avoid his assessment, by proving that it had been made as well upon parties not liable as upon parties liable thereto, for the reason that even if this be so, he has no ground of complaint, the burden upon him being actually diminished thereby.</p> <p>Parties insured in a mutual insurance company gave premium notes in the following form: —</p> <p>11 Deposit Note, Policy No.</p> <p>For value received I promise to pay the Slater Mutual Fire Insurance Company, or their order, dollars, at such times and by such instalments as the Directors of said Company shall, froip time to time, assess and order, pursuant to the Charter and By-Laws of said Company.”</p> <p>Held, that the statute of limitations did not begin to run against such notes until an assessment had been made thereon to pay losses incurred.</p> <p>Although a notice has been given by public advertisement, by the receiver of a mutual insurance company, to all persons to present their claims against the same within a specified time, an assessment made against said company by the receiver of another company after the time named in such notice has expired and an assessment has been made based upon the claims presented in accordance therewith, must, if otherwise justly due, be paid in the same proportion in which other claims are paid, provided there still remain in the hands of such first named receiver, at its presentation, sufficient funds therefor.</p> <p>To justify an assessment by a mutual insurance company upon an alleged lost or missing note, proof must be furnished of its having at some time existed unpaid and uncancelled, and the records of the company stating the giving of such a note do not furnish sufficient evidence thereof, as the books of a corporate company are not evidence, as against a member of the corporation, of his contracting with the company.</p>

<p>A mortgagor of personal property, left in possession thereof, who again mortgages the entire property without giving notice of the existing mortgage, and afterwards gives the second mortgagee possession, or permits him to take possession thereof, is guilty of tortious conversion, and is liable to the first mortgagee in an action of trover.</p>

<p>A dedication of land for the use of a limited portion of the public, when made for a purpose in which only that portion can have an interest, is a valid dedication, and a title to land so dedicated, whether by persons or corporations, as well as to land given to a charitable use, may .be acquired by adverse possession.</p> <p>Semble, that a partial dedication of land for a highway cannot he made, inasmuch as, a highway having once been laid out, all the general public have an interest in the use thereof.</p> <p>The vote of the town of Providence, passed in 1708, dedicating a certain lot of land for a training ground and burial' place, and for such other public uses as the town should see cause, held to be a dedication or gift, to a charitable use, for a limited portion of the public, and held that, consequently, title to it or to any part thereof could be acquired by adverse possession.</p>

<p>Under the statute of descents, Rev. Stat. chap. 159, § 6, a father of an intestate dying without issue takes an estate which descended to such intestate from her sister, although said sister had inherited the same through the maternal line, the words of the statute meaning, that the estate shall go to the next of kin of the blood of the person from whom the estate came by immediate descent.</p> <p>Devise by A. of “that portion of my late father’s estate which was left by him for the use of my sister, during her life, in trust, to my son-in-law, my executor and trustee, in special trust, for him to manage and improve and to collect and pay over the income and profits thereof as often as may be found convenient, equally to be divided between my grandchildren L. and M., daughters of my deceased daughter ; the said income and . profits to be paid to and applied by my eldest unmarried daughter to the use and benefit of my said grandchildren, and in case of the death or marriage of both of my said daughters, then the same to be paid to the legal guardian of my said grandchildren, and to be applied for their sole use and benefit as aforesaid. And in the event of the decease of either of my said granddaughters L. or M. without leaving issue then alive, my will is that her share of the property and estate devised and bequeathed herein by this item shall vest in and enure to the benefit of her sister who may survive, subject to the conditions of the trust established in this clause, and in the event of the decease of both of my said grandchildren without leaving issue, then the property and estate hereby devised and bequeathed to them shall go to and vest in my children and grandchildren as my heirs at law, according to law, as undevised property.” The said L. died after the making of the will, during the life of the testatrix, without leaving issue. M. died subsequently to the testatrix, leaving a son. Held, that under the foregoing clause - in the will of A., M. took an equitable estate of inheritance which vested in her son, the intent to create an estate in fee being plain, and therefore the absence of words of inheritance being immaterial.</p> <p>Held, further, that the second limitation over should he regarded as contingent, not upon an indefinite failure of issue, but upon a failure at the death of the surviving grandson, and that consequently said M. took a fee simple conditional, and not a fee tail.</p>

Action of trespass and ejectment commenced at a special court of common pleas, to recover possession of a tenement hired by the defendant from the plaintiff, who was the owner thereof.

<p>The plaintiffs, the P. & W. R. R. Company, procured insurance in the defendant insurance company, the policy of insurance containing the following proviso : “Provided, all the property hereby insured is on premises owned or occupied by the Providence and Worcester Railroad Company, in Massachusetts and Rhode Island.....It matters not whether the property is in motion on the road, at rest, or in buildings.” Held, that by reason of this proviso the defendant insurance company was not liable for a loss occurring upon premises not used or occupied by the plaintiffs at the time of the issuing of the policy, although so used and occupied by them at the time of the loss.</p>

<p>In section 16, chap. 176 of the Revised Statutes, which provides that if the life of any person crossing upon a highway with reasonable care shall be lost by reason of the negligence or carelessness of common carriers, by means of railroads or steamboats, or by the unfitness or negligence or carelessness of their servants or agents, in this state, said common carriers, proprietor or proprietors, shall be liable to damages for the same; held, that the term highway as there used is not restricted to a highway upon land, but that an action may be maintained under that statute for injuries received in crossing any navigable waters, the same being a public highway.</p> <p>Held, further, that corporations are within the provisions of section 21 of said chap. 176, which provides for an action against the person inflicting an injury which causes the death of another, and are, as such, liable in damages for deaths caused by carelessness or negligente of their servants. '</p>

Assumpsit upon a promissory note for the sum of eighteen dollars and twenty cents.

<p>This was an action to recover $50,000 damages, for breach of a contract. At the trial of the case, at the October Term, 1870, of the Supreme Court for this county, before the chief justice and a jury, a verdict was rendered in favor of the defendants, whereupon the plaintiff moved for a new trial on the ground of alleged error on the part of the judge presiding at the trial, in the exclusion of certain testimony offered by the plaintiff. The grounds of the motion are fully set out in the opinion of the court.'</p>

Bill in equity, filed by certain tax payers of the city of Providence against the city council of said city, for an injunction to restrain said council from doing anything under the following' vote of the council, approved December 1, 1871: “ Resolved,.

Bill in equity brought by Edward D. Pearce, and William H. Waterman, executors of the will of James Wheaton, to obtain the construction of the court concerning certain legacies in his will. The bill stated that the testator bequeathed, among other things, eight hundred shares of the capital stock of the Blackstone Canal National Bank, whereas at the time said will was made, he owned only eighty shares, and never at any time had owned any more.

<p>Every owner of land through which water flows is entitled to receive the water uncorrupted in quality from riparian proprietors above him, aud a court of equity will issue an injunction to prevent such corruption, upon satisfactory proof thereof.</p>

<p>These were three bills in equity brought by the complainant, Henry W. Slocum, against the above named respondents respectively. The bill in each case stated, in substance, that the respondents, having obtained judgment against the American Steam and Gas Pipe Company, had taken out execution, levied the same on certain real estate belonging to the complainant, and advertised it for sale thereunder. It further alleged that the charter of the said company was granted to certain persons of whom the complainant was nut one, by the General Assembly of the State of Rhode Island, in 1867, but never took effect; the sum required by chap. 475 of the Statutes to be paid to the general treasurer before it should take effect, never having been paid.</p> <p>It further alleged that the complainant was not, and never had been, to the best of his information and belief, a stockholder in said company, for the reason aforesaid, and that he never was an officer or agent of said company ; that he never attended any of their meetings, nor did any other person in his behalf, and never did any act in anywise appertaining to the business of said company or their credit, and never by word or represdhtation gave encouragement or credit to said company, and was never identified with them, and never did any act as a stockholder in said supposed corporation. The bills prayed that the several respond-’ ents might be perpetually enjoined from proceeding further in selling the said estates of the complainant. To these bills the respondents demurred generally.</p> <p>The liability of the complainant was incurred under chapter-128 of the Eevised Statutes, which provided as follows: —</p> <p>“ Section 11. Every manufacturing company included within the provisions of this chapter shall file in the town clerk’s office of the town where the manufactory is established, annually, a certificate signed by the president and a majority of the directors, truly stating the amount of all assessments voted by the company, and actually paid in, and the amount of all existing debts.</p> <p>“ Section 12. If any of said companies shall fail so to do, all the stockholders of said company shall be jointly and severally liable for al.l the debts of the company then existing, and for all that shall be contracted before such notice shall be given, unless such company shall have become insolvent and assigned its property in trust for the benefit of its creditors, in which case the obligation to give such notice by the filing of such certificate, shall cease.”</p> <p>The essential provisions of chap. 475 of the Statutes, which requires the payment of a tax to the state by every corporation before its charter shall take effect, are stated in the opinion of the court.</p>

Action oe debt on a bond of which the following is a copy: — “ Liquor dealer’s bond. — Know all men by these presents, that we, Patrick J. Norton, as principal, and William H. Greene and Daniel Donnelly, as sureties, all of the City and County of Providence, in the State of Rhode Island, are held and firmly bound unto the City Treasurer of the City of Providence, in said State, and to his successor in office in the full sum of one thousand dollars, to be paid to the said…

Action oe debt on a bond given by the defendant James Flanigan and his sureties, submitted to the court both upon fact and law, a jury trial having been waived. The bond was in the same form as that in the case of Tripp, Gity Treasurer, v. Norton, reported at page 125 of this volume of reports. The facts of the case are stated in the opinion of the court.

<p>Action oe debt on a bond given by the defendant John B. Hennessy and his sureties, submitted to the court both upon fact and law, a jury trial having been waived. The bond, which was dated July 2, 1870, was in the same form as that in the case of Tripp, Qity Treasurer, v. Norton, reported at page 125 of this volume of reports.</p> <p>The license given to the defendant Hennessy was in the following form : —</p> <p>“ 1350.00. Liquob [Seal] License. — The city of Providence. This is to certify, that by order oí the Mayor and Board of Aldermen of the city of Providence, and pursuant to the public laws of Rhode Island, license is hereby granted to John B. Hennessy to sell spirituous and intoxicating liquors at retail, and be drank on the premises, at No. 157 Canal Street, within the said city of Providence, for the term from the date hereof until the first day of July next ensuing, unless sooner revoked, and conditioned that no intoxicating or spirituous liquors shall be sold on said premises contrary to law.</p> <p>“ Witness, my hand and the seal of the ■ Board of Aldermen, July 2, 1870.</p> <p>[Seal.] (Signed) “ Samuel W. Brown, GlerJc.</p> <p>“Extract erom the Law relating to the Sale of Intoxicating Liquors. — If any licensed person shall sell, or suffer to be sold, any intoxicating or spirituous liquors contrary to the provisions contained in this act, his bond shall be put in suit by the town or city treasurer of the town or city where such person obtained his license ; and by due process of law the penal sum thereof be recovered for the use of said town or city. And if any such licensed person shall permit the. house or place (which shall be described in the license) where he is licensed to sell [iquors under the provisions of this act to become disorderly, so as to annoy and disturb the persons inhabiting or residing in the neighborhood thereof, or shall permit any gambling or unlawful gaming to be carried on therein, or shall knowingly permit any of the laws of the state to be violated thereat, in addition to any penalties which may be prescribed by statutes for such offences, he may be summoned before the town council or aldermen who granted such license, when the licensed person, and witnesses for and against him, may be heard ; and if it shall be made to appear to the satisfaction of such council or board of aldermen that such licensed person has violated the provisions of this section of this act, then they may revoke his license, and such licensed person shall cease to have any authority thereunder.”</p> <p>At the trial of the case it appeared that previous to the granting of said license the following voté was passed by the board of aldermen of the city of Providence : —</p> <p>“City of Providence. In Board of Aldermen, July 1, 1870. Resolved, That wholesale and retail liquor dealers be defined according to the United States revenue law as follows: .</p> <p>“ Wholesale dealers, those who sell in quantities of three gallons and upwards. Retail dealers, those who sell in quantities less than three gallons.”</p> <p>Tbe other material facts in the ease are stated in the opinion of the court.</p>

<p>The respondent, administrator on the estate of B., filed his account in the court of probate, where a decree allowing* it was passed. The complainants in this suit appealed from said decree to the Supreme Court. Pending this appeal the complainants filed a bill in equity, alleging that the respondent had failed to account for, and had concealed, some of the personal property of his intestate, and been guilty of other misconduct as such administrator, and had fraudulently procured a release of all claims against said estate from one F. B., who was entitled to all the personal estate, and praying that said instrument of release might be decreed to be void, and the said respondent decreed to account for all the personal estate of the deceased. Meld, on demurrer to the bill, that the jurisdiction of the Supreme Court as a court of equity being concurrent with its jurisdiction at law as the appellate court of probate, a court of equity would not take jurisdiction of the bill, either to withdraw the account from the court of probate or to declare void the instrument of release as procured by fraud, but that the complainants could obtain the relief sought, if entitled thereto, upon the hearing of the appeal from the decree of the court of probate, on the law side of the court.</p>

Bill in EQUITY brought by Philip B. Bourne, administrator of William Coggeshall, and some of the heirs of said William, against the respondent, Benjamin Hall.

Bill in equity to obtain an account. The case was heard on exceptions to the master’s report. The facts of the case are stated in the opinion of the court.

<p>In any indictment or other criminal proceeding where there is more than one defendant, all the defendants taken collectively, and not individually, are entitled to challenge peremptorily one juror out of every six that are called for the trial of the cause.</p> <p>The master and mate of a steamer were jointly indicted for manslaughter caused by a collision. It was in evidence that they were both in the pilot-house before and at the time of the collision. Held, that a motion to direct the jury to return a verdict of not guilty as to the mate, because he was subject to the orders of the master and must be presumed to have acted under his orders, was properly refused, as the commands of the master would not justify the mate in the commission of a criminal offence, or in keeping the vessel on a course that endangered life.</p>

Bill in equity to set aside two powers of attorney executed by the complainant April 8,1867, by each of which he authorized Chester P. Hutchins, one of the respondents, to convey ten shares of American Screw Company stock, being the property of the complainant. The bill alleged that .George H. Anthony, the complainant, was on the 8th of April, 1867, and for several years previously had been, clerk in the wholesale grocery store of Henry S. Hutch-ins, one of the defendants.

<p>• Action of trespass and ejectment to try title to recover possession of a parcel of land in tbe city of Providence. The defendant pleaded a former action by way of estoppel, and a replication thereto was filed by the plaintiff. The case was heard upon a special demurrer of the defendant to said replication. All the pleadings, showing the issue before the court, at the trial, are stated at the commencement of the opinion of the court.</p> <p>in support of the demurrer. I. The doctrine of estoppel is reasonable, just, and beneficial, and favored by the courts. Herman on Estoppel, 23, 24 ; Adams v. Barnes, 17 Mass. 365.</p> <p>II. In the case of an estoppel of record, there can be no question that when the record of a former judgment is pleaded and relied on as an estoppel, it is conclusive as to all the matters that were tried, or that within the fair scope of the pleadings might have been tried, in the former suit. Outram v. Mooreivood, 3 East, 346 ; Aurora City v. West, 7 Wal. 95; Vooght v. Winch, 2 B. & A. 662; Howard v. Mitchell, 14 Mass. 241; Grardner v. Buekbee, 8 Cow. 120 ; Long v. Long, 5 Watts, 102; 2 Smith’s Lead. Cases, 662; 1 Phil. Ev. 244.</p> <p>III. The title sought to be tried in this case is the same which was tried in the former suit referred to in defendants’ plea. 1 Chitty’s PL 279, 280, and 629 et seq.; Steph. Pl. 313; Story’s Plead. 619-625; Stevens v. Whistler, 6 East, 39; Lambert v. Stroother, Willes, 218.</p> <p>IV. If the title sought to be tried in this suit was not tried in said former suit, it might have been tried, and therefore the judgment is conclusive. Aurora Oity v. West, 7 Wal. 82; Kelheffer v. Kerr, 17 S. & E. 319 ; Gaston v. Perry, 1 Bailey, 533 ; Bag-got v. Williams, 3 B. & C. 235 ; Greathead v. Bromley, 7 D. & E. 451; 2 Smith’s Lead. Cases, 793, 794.</p> <p>V. The close in said former suit being entire and indivisible, the judgment as to the title of a part thereof operates against the plaintiff in this case as effectually as a judgment as to the title of the whole. 2 Smith’s Lead. Cases, pp. 788, 799, 801, 810; Simes v. Zane, 12 Harris, 242 ; Ballance v. Forsyth, 24 Plow. U. S. 183.</p> <p>VI. Nothing but the record of the former judgment can be considered by the court in this case. Kastmure v. Lawes, 5 Bing. 450; Trevivan v. Lawrence, 1 Salk. 276; Burt v. Sternburgh, 4 Cow. 559 ; Whitaker v. Jackson, 2 H. & C. 926 ; 2 Smith’s Lead. Cases, 657,-789, 796 ; Herman on Estoppel, p. 31; 1 Phil. Ev. 237, 238.</p> <p>I. This is not an attempt to contradict the record recited, but is the legal and proper interpretation of that record. The plaintiff claims that the legal effect of the record recited is, that the title to the “ locus in quo ” only, that is, that portion of laird where the building stood (which is not embraced in the declaration in this suit), was determined to be in the plaintiffs in that suit as against the city of Providence.</p> <p>II. A judgment in an action of trespass in which the defendant pleads liberum tenementum determines the title to that part only of the close described in which the trespasses alleged are proved or admitted to have been committed, so that if the plaintiffs or defendants show title to that portion of the close where the trespass was actually committed, they are entitled to judgment, the words, “ close in which,” constituting a divisible allegation. • Rich v. Rich, 16 Wend. 663 ; King v. Dunn, 21 Wend. 253; Peaslee v. Wadleigh, 5 N. H. 317; Wheeler v. Rowell, 7 N. H. 515 ; Knowles v. Dow, 20 N. H. 135 ; Palmer v. Tuttle, 39 N. H. 486 ; Taqoley v. Wainwright, 5 B. & Ad. 395; Richards v. Peake, 2 B. & CL 918 ; Bassett v. Mitchell, 2 B. & Ad. 99 ; Smith v. Royston, 8 M. & W. 381; 3 Stephen’s Nisi Prius, 2653 ; 2 Greenleaf’s Evidence, 626 ; 2 Selwyn’s Nisi Prius, p. 1337.</p>

<p>The condition of a bond being that “ Whereas the board of aldermen of the said city of Providence have voted that a license be granted to said principal to sell spirituous and intoxicating liquors,” &c. “ Now therefore if the said principal shall not violate any of the provisions of the laws aforesaid, then the aforewritten obligation shall be void; ” held, that the said condition must be construed as being in compliance with the provisions of chapter 670 of the Statutes, that before granting any license the person applying therefor shall give bond conditioned “ that he will not violate any of the provisions of this act.”</p>

It was admitted at the trial of the appeal that the appellant was the widow of Brayton Gardner, that the latter owned the lands in question during their marriage, and also that before their marriage the said Brayton and Almira Gardner entered into an agreement in the following form: — “ This indenture of two parts, made and executed on the first day of November, A. D. 1841, by and between Brayton Gardner of Providence, in the State of Rhode Island and Providence Plantations,…

Bill in -equity to compel a conveyance by tbe respondent to the complainant of a certain farm in Cumberland, which the respondent bid off at a mortgagee’s sale, and then, taking a deed to himself, refused to convey to the complainant in accordance with an alleged agreement previously made between the parties.

Action of the case to recover damages for the alleged negligent storing by the defendants of the plaintiffs’ carriages in an unsafe building.

<p>P.’s testator gave a promissory note to H. payable two years after date, with interest semi-annually, at the rate of nine per cent, per annum, and mortgaged certain premises to secure the payment of said note. Held, P. having filed a bill in equity to redeem said ! mortgaged premises, that H. was entitled, under the provisions of chap. 582 of the Statutes, to interest upon the mortgage debt at the stipulated rate up to the time it became due, and subsequently to that time at the rate of six per cent, per annum, and to interest at the rate of six per cent, per annum upon the semi-annual dues of interest remaining unpaid, from the time they became payable, and that P. might redeem upon payment of the mortgage debt with interest thus computed, inasmuch as the contract rate must govern only to the time of the maturity of the note, and after that, in the absence of any special contract, the rate fixed by law.</p>

<p>The Roman, canon, and English ecclesiastical law, stated. Held, that while a dead body is not property in the strict sense of the common law, it is a quad property, over which the relatives of the deceased have rights which the courts will protect. Held, that the persons having charge of a dead body hold it as a trust which a court of equity will regulate.</p>

<p>The defendants, an express company in New York, received from the plaintiffs, April 10, 1861, certain goods to be sent to one C. at Rome, Georgia, and gave a receipt specifying that they were to be sent to the defendants’ agency nearest their destination. They arrived at Savannah, Georgia, about the last of April, when they were taken possession of by an officer of the (so-called) Confederate Government, and placed in a bonded warehouse, and subsequently sold for non-payment of duties levied on them, after C. had been notified that they would be sold unless he paid the duties. Held, that the defendants had been deprived of the goods by the acts of public enemies, and consequently were not liable to the plaintiffs for their value.</p> <p>Civil war defined, and the beginning of the late rebellion determined.</p> <p>The burden of proof is on a common carrier after a loss is shown, to show that it was by one of the excepted perils for which carriers are not liable. The plaintiff may then show that the loss might have been avoided by reasonable skill and attention, but the burden of proof is on him to establish the negligence.</p>

<p>Action on trover, brought by the administrator of B. A. Slocomb, deceased, who was in his lifetime a deputy sheriff, for the conversion by the defendant of certain liquors which had been attached and then delivered to the defendant upon his receipt and agreement to return them upon the determination of the suit wherein the attachment was made. The case was now heard upon the plaintiff’s motion to strike out certain pleas filed by the defendant. The substance of the pleas, and the grounds of the motion, are stated in the opinion of the court.</p>

<p>Indictment under section 4 of chap. 829 of tbe Statutes, ■which reads as follows: “ Sec. 4. Whoever sells or exchanges, or has in his possession with intent to sell or exchange, or offer for sale or exchange, adulterated milk, or milk to which water or any foreign substance has been added, shall for each offence be punished by a fine of not less than twenty, nor more than one hundred dollars.” At the trial of the case at the Court of Common Pleas for this county at its March Term, 1871, before Mr. Justice Burges and a jury, a verdict of guilty was rendered against the defendant, whereupon he alleged exceptions, which are fully stated in the opinion of the court.</p> <p>in support of the exceptions, cited State v. Luther, 8 R. I. 151.</p> <p>cited Whart. Crim. Law, book 1, § 152; 2 Lead. Crim. Cas. 293; Commonwealth v. Barren, 9 Allen, 489; Commonwealth v.- Nichols, 10 Allen, 199; Commonwealth v. Waite, 11 Allen, 264.</p>

<p>Trover. The case was heard on the special demurrer of the defendant to the plaintiffs’ replication to the defendant’s plea, puis darrein. The pleadings are stated in the opinion of the 'court.</p> <p>in support of the demurrer, cited § 34 of the National Bankrupt Act.</p> <p>cited Bump’s Law and Practice of Bankruptcy, 308, 391, 330, note a; Commonwealth v. Keeper of Jail of Philadelphia, 4 S. & R. 506 ; In re Ward E. Robinson, 2 Bankrupt Register, 108 ; In re Charles ' Q-. Patterson, 1 Bankrupt Register, 58; Pure James B. JDevoe, • 2 Bankrupt Register, 11.</p>

<p>Decision in Ellis, Administrator, v. Appleby et al. 4 R. I. 462, reaffirmed, that errors of form in pleading may be amended without imposing costs, as provided by chap. 184, §§ 4 & '5, of the Revised Statutes.</p>

Appeal, taken to tbe Court of Common Pleas for this county, at its December Term, 1871, from the proceedings of the town council of the town of North Providence, under chapter 310 of the Statutes, the substance of which, as well as the grounds of the appeal, are stated in the opinion of the court.

<p>Trespass and ejectment to obtain possession of a lot of land with the improvements thereon, situated in the village of Pawtucket, bought by the plaintiff at a constable’s sale upon an execution against the defendant issuing from a justice court at the suit of one David G. Allen. A jury trial having been waived, the case was submitted to the court both in fact and law. The plaintiff offered in support of his title the execution in said suit of Allen v. Emerson, with the officer’s return thereon. The return was as follows : —</p> <p>“ Providence so. North Providence, May 7th, 1863.</p> <p>“ I have this day at twelve o’clock noon levied the within execution on all the right, title, and interest of the within named defendant in and to the following described real estate [describing it], and have left a copy of the within execution, with my doings thereon, with the town clerk of North Providence. I have also set up notifications of said levy on said real estate in three public places in said town of North Providence, to wit, one at the town clerk’s office in said town of North Providence, one at Dispeau and Childs, and one at the Railroad Depot, and that the same will be sold at public auction to be held at the town clerk’s office in the village of Pawtucket, North Providence, on the 10th day of August, 1863, at ten o’clock in the forenoon.</p> <p>(Signed) “Ansel Carpenter, Constable.”</p> <p>“ In pursuance to advertisement I have this tenth day of August, 1863, sold the above property to Randall B. Wilcox, who was the highest bidder, for the sum of twenty-four x3A dollars, which I have applied to the satisfaction of the said execution, and hereby return this execution satisfied for debt and costs.</p> <p>(Signed) “Ansel Carpenter, Constable.”</p> <p>The defendant objecting that the officer’s return was defective, inasmuch as it did not appear from it that tbe estate had been advertised for sale, as required by the provision in Rev. Stat. chap. 195, § 11, that the officer charged with the service of an execution if he levy it on real estate shall- notify the same “ by causing an advertisement thereof to be published, once a week, for the space of three weeks next before the time of such sale, in some newspaper in the county where said estate lies,” the case was now heard on the question of the sufficiency of the officer’s return, and of the right to introduce evidence to show that the sale had been duly advertised, notwithstanding it did not so appear in the officer’s return.</p>

<p>S. held certain real estate upon trust under the will of H. to pay the rents and profits to W. during his lifetime and to convey it in fee simple to his children after his decease. W. during his life assigned to S. for the benefit of his creditors a building on said premises not subject to the trusts of the will. It was afterwards destroyed by fire, and S. built another in its place. Held, that S. could not charge the estate with the money expended in building the same, but might remove it from the trust estate before conveying the latter to the children of W.</p> <p>Held, further, that S., who had during the lifetime of W. made advances out of his own moneys for the support of W.’s infant child, should be allowed the benefit of a charge for the same upon the trust estate, it appearing that under the circumstances of the case, the court would have permitted the charge if its sanction had been previously requested.</p> <p>Held, further, that S. was entitled to be allowed out of the trust estate a claim for moneys paid to counsel employed to procure authority to sell a portion of the trust estate, to raise the means for making improvements thereon and paying debts.</p>

<p>Action oe debt, on a judgment of court for $161.29, brought at the December Term, 1871, of the Court of Common Pleas for this county. Service of the writ was made by garnishment of the city of Providence for money due the defendant as a sergeant in the police force of the city. The city by its treasurer filed an affidavit admitting an indebtedness, and moved the court at its said December Term to discharge the garnishee, on the ground that the city was not liable to garnishee process. The motion having been there denied, now came before this court on appeal.</p> <p>in support of the motion. I. It is against public policy to hold a municipal corporation liable to garnishment, because it is an unnecessary interference with the operations of municipal government. Bradley v. Richmond, 6 Vt. 121; Hamilton v. St. Louis, 11 Misso. 59; Fortune v. St. Louis, 23 Misso. 239; Baltimore v. Root, 8 Md. 95; Mobile v. Rowland, 26 Ala. 498 ; Burnham v. Fond du Lac, 15 Wis. 193 ; McBougal v. Hennepin County, 4 Minn. 184; Fgerton v. Third Municipality, 11 La. Ann. 435.</p> <p>II. The city treasurer, upon whom the writ was served, is a public officer, whose duties are prescribed by law and the ordinances of the. city.</p> <p>III. The defendant is also a public officer, and is bound to the performance of certain duties specified in the statutes, the ordinances of the city, and the rules of the board of aldermen. See acts of the general assembly and ordinances of the city council, providing for the appointment of police officers, &c., and city charter (chap. 598 of the-Statutes), section viii. clause 1.</p> <p>IV. No person,, deriving his authority from the law, and obliged to execute it according to the rules of law, can be charged as a garnishee in respect of any money or property held by him by virtue of that authority. Chealey et al v. Brewer Trustee, 7 Mass. 259 ; Brooks v. Cook ‡ Trustee, 8 Mass. 246 ; Colby v. Coates et al. 6 Cush. 558 ; Thayer v. Tyler Trustee, 5 Allen, 94; Buchanan y. Alexander, 4 How. (U. S.) 20; Averill v. Tucker, 2 Cranch C. C. 544; Stillman v. Isham, 11 Conn. 124; Drake on Attachment, chap. xxii. and cases cited.</p> <p>I. By the general law, a municipal corporation may be garnisheed. Whidden v. Brake, 5 N. H. 13 ; Bray v. Wallingford, 20 Conn. 416 ; Wales Son v. City of Muscatine, 4 Iowa, 302.</p> <p>II. By the statute law of Rhode Island (Rev. Stat. cc. 125, § 1, 183, § 6, and Statutes, chap. 858, § 2), all corporations, unless otherwise provided, can sue and be sued, and be garnisheed, and no exception is made as to municipal corporations. Such corporations are in all respects liable as other corporations, unless otherwise provided.</p>

Assumpsit for goods, wares, and merchandise sold and delivered, and work and labor done. The case was heard upon the defendants’ exceptions to the award of referees, to whom the case had been referred by rule of court. The exceptions and the essential facts of the case appear in the opinion. in support of the exceptions.

Trespass and ejectment to recover possession of a certain piece of real estate, situate in the town of Warren, R. I. A jury trial having been waived, the case was submitted to the court both in fact and law.

<p>Bhl in equity to foreclose a mortgage on lands in Newport, R. I., executed to secure a bond for $7,500, dated May 7, 1857, given by David P. Hall to Gerrit Smith, the bond and mortgage having been subsequently assigned to the complainant. The essential parts of the bond are stated at the commencement of the opinion of the court.</p> <p>The cause having been referred to Francis B. Peckham, Jr., Esq., Master in Chancery, to compute the interest and ascertain the amount justly due the complainant on the said mortgage, the master reported that by the terms of said bond a semi-annual instalment of interest, amounting to $262.50, became due and payable on said mortgage on every 7th day of November and 7th day of May in each year, subsequent to the 7th day of May, 1858, and that there was also due to the complainant interest, at the rate of six per centum per annum, upon every instalment of interest from the time it became due. The case was now heard on the respondents’ exceptions to the master’s report.</p> <p>in support of the exceptions, contended that the report of the master was in violation of the general rule, that compound interest, or interest on interest is nev^r allowed in courts of law or equity, citing Leonard v. Fillers, 23 111. 377; State of Connecticut v. Jackson, 1 Johns. Ch. 13, and cases there cited ; Fan Beusehoten v. Laioson, 6 Johns. Ch. 313 ; Toll v. Riller, 11 Paige, 228 ; For-man v. Forman, 17 How. Pr. 255 ; Rastings v. Wiswall, 8 Mass. 455; jKittredge v. McLaughlin, 38 Maine, 513; Bannister v. Roberts, 35 Maine, 75; Roe v. Warren, 17 Maine, 48 ; Light-foot v. Price, 4 Hen. & Munf. 431; Morey v. Bishop, 5 Paige, 98; Renderson v. Ramilton, 1 Hall (N. Y.), 314; Ferry v. Ferry, 2 Cush. 92 ; Fan Remert v. Porter, 11 Met. 210; Stone v. Locke, 46 Maine, 445; Stokeley v. Thompson, 34 Pa. State, 210; Bean v. Williams, 17 Mass. 417; Childers v. Bean, 4 Rand. 406.</p>

Bill in equity for an account, and to redeem a mortgage. The main question in the suit haying been disposed of by the parties, the case was now heard on the question of costs. The facts appear in the opinion of the court. I. The rule that upon a bill to redeem the defendant mortgagee is entitled to costs, where the question, as here, is not on the right to redeem, but only upon the amount due, was long ago adopted and settled as the rule of this court.

<p>Action ok the case to recover damages of the town of Cumberland for alleged negligence in not keeping a highway-known as Blackstone Street in a safe condition.</p> <p>At the trial of the case at the present term of the court, before Mr. Justice Potter and a jury, a verdict was rendered for the defendant, whereupon the plaintiff alleged exceptions and moved for a new trial. The exceptions, and the facts of the case, are stated in the opinion of the court.</p> <p>in support of the motion. I. Towns are liable for injuries resulting from defects outside the line of the highway, but near the same, and in the general direction of the line of travel. Goggswell v. Lexington, 4 Cush. 307 ; Hayden v. Attleborough, 7 Gray, 338 ; Palmer et al v. Andover, 2 Cush. 600 ; Currier v. Lowell, 16 Pick. 170; Davis v. Hill, 41 N. H. 329; Sparhaiolc v. Salem, 1 Allen, 30.</p> <p>II. A town is bound to fence in a dangerous spot immediately contiguous to a highway in a compact part of a city or village, more particularly when the dangerous spot invites the traveller to enter it, from its similarity to the true highway. Taylor v. Peclcham, 8 E. I. 352.</p> <p>I. The steep declivity where the accident occurred being from fifty to one hundred and fifty feet from the highway (Blackstone Street), along; which plaintiff says she was travelling, was not so immediately contiguous to said highway as to render same unsafe for travelr lers along said highway with teams, carts, or carriages, and didi not constitute a defect or want of repair for which the towmi would be liable. Hayden v. Attleborough, 7 Gray, 338; Spar-hawk v. City of Salem, 1 Allen, 30 ; Taylor v. Peckham, 8 E. I. 351. Towns are not liable unless the defects are within the limits of the general course and direction of the travel along their highways. Goggswell v. Lexington, 4 Cush. 307; Shepardson v. Golerain, 13 Met. 61. Towns are not liable for defects outside the wrought and publicly travelled path, even within the limits of the highway. Howard v. North Bridgewater, 16 Pick. 190; Smith v. Wendell, 7 Cush. 498 ; Kellogg v.'Northampton, 4 Gray, 69 ; 8 Ibid. 504.</p> <p>II. Towns are not liable except for defects in their highways for which they could be indicted. Eev. Stat. ch. 44, §§ 13,14; Howard v. North Bridgewater, IQ Pick. 189 ; Frost v. Portland, 11 Maine, 271. The defect where the accident occurred was a defect in a private passway, for which the town could not be indicted.</p> <p>III. If the town had no right or power to fence up this pass-way, it is not answerable for the consequences which follow from the want of a fence. Jones v. Waltham, 4 Cush. 299.</p>

Assumpsit to recover the sum of ninety-three dollars and forty-two cents alleged to be due the plaintiffs from the defendant on book account.

Bill in equity, brought by tbe widow of Caleb Harris deceased, against tbe Rhode Island Hospital Trust Company, who were tbe executors of her late husband’s will, by which she received a certain legacy in lieu of her dower.

Exceptions to the report of commissioners laying out Mount Pleasant Avenue, so called, in the town of North Providence. At the January Session, 1870, of the general assembly, an act •was passed, being chapter 872 of the Statutes, the first three sections of which were as follows: — “AN ACT IN RELATION TO LAYING OUT AND ALTERING STREETS IN THE TOWNS OE NORTH PROVIDENCE, CRANSTON, WOONSOCKET AND PAWTUCKET. “ It is enacted by the General Assembly, as follows : Section 1.

<p>A mortgage by deed under seal which recognizes notes which have been taken up by the mortgagee as notes which are overdue and unpaid, and which the mortgagor is bound to pay, must be upheld both in law and equity.</p> <p>Clapp v. Glidden, 39 Maine, 448, and Treat v. Gilmore, 49'Maine, 34, stated and distinguished from the case at bar.</p>

Replevin of two hackney carriages, brought by the plaintiffs as mortgagees. The case was submitted to the court, both in fact and law, a jury trial having been waived. At the trial of the case it appeared that in 1869 the firm of Wheeler & Tail-man, livery stable-keepers, mortgaged their stock of carriages to the plaintiffs, to secure them for advances and indorsements. Subsequently Wheeler & Tallman failed, and the plaintiffs took possession of the mortgaged property.

<p>Where a deed is delivered by A. to B. to be delivered to C., and the deed is afterwards found in the possession of C., and purports to have been signed, sealed, delivered, and acknowledged, the burden is on A. if he claims that the deed was to be kept as an escrow until the land therein conveyed should be paid for, to prove this, and that it was not duly delivered to C., and a court of equity will not order a reconveyance where they do not find on the evidence that the deed Was hot duly delivered, or where they find that, if it was at first unfairly delivered, the plaintiff acquiesced in its retention as his deed.</p> <p>Whether in this state the vendor of land has a lien upon the land sold after conveyance thereof, for the unpaid purchase money, is doubtful. At all events there may be a waiver of the lien by the vendor either express or implied, and it will be considered as i waived whenever any security is taken beyond the personal obligation of the vendor, unless there is an express agreement or proviso that the lien shall be retained.</p>

<p>K. filed a bill in equity to have a third part of an estate set off to her. An order of par- - tition was made directing that the estate be first divided into third parts and one of these set off to the complainant and those holding with her, and then a third part of this third part be set off to the complainant. Held, that it was her right and the proper ■ construction of the decree to have her third set off by itself in one -tract, there being nothing to show that it was necessary to assign her a portion of different tracts of land.</p> <p>Held, further, That it was not necessary to assign to each share an equal number of square feet, each party being entitled simply to his proportional share according to the value.</p> <p>Held, further, That a partition in which many of the lots adjoined no public ways, and to , which the commissioners had assigned no private ways, was objectionable, and would not be sanctioned by the court.</p>

Indictment against the defendant, charging him with obstructing a public highway or driftway in the town of Cumberland.

<p>Bill in equity for specific performance of a contract for tbe purchase of certain real estate. The bill alleged that the complainants, Elizabeth Sutton and Albert F. Sutton, were respectively the widow and son of William Sutton, deceased, the said Elizabeth never having married again since the decease of her said husband. That said William Sutton died in 1853, leaving a last will and testament, which was duly admitted to probate, by the eighth clause of which (which is set out in full at the commencement of the opinion of the court) he devised to the complainants certain real estate, of which, at the time of making his will and at the time of his decease, he was seised and possessed in his own right in fee simple. The bill further alleged that the respondent, by his contract in writing dated June 15, 1872, agreed to purchase of the complainants a portion of the real estate só devised to them, for the sum of two thousand dollars, payable upon delivery by the complainants to the respondent of a full warranty deed and perfect title of said real estate, with release of dower by the wife of said Albert F. Sutton ; that the complainants had offered to the respondent their deed of said estate according to the terms of said agreement; and demanded payment of said purchase money, but that the respondent refused to accept said deed or complete the purchase' by payment of said purchase money, alleging that by the terms of the devise to the complainants they had not, and could not by their said deed make to him, a perfect and indefeasible title in fee simple to said estate, the said Albert F. Sutton now having a child living, though none at the time said will was made. The bill prayed that the respondent might by decree be compelled to accept the deed and title aforesaid, and complete the purchase by payment to the complainants of said purchase money. To this bill the respondent demurred generally.</p> <p>in support of the demurrer.</p> <p>Under the eighth section of the will of William Sutton, the complainant, Elizabeth Sutton took an estate for life, and the complainant, Albert F. Sutton, a vested estate tail in remainder, expectant immediately upon the death of the life tenant. Joe cl. Simpson v. Simpson, 5 Scott, 770; Joe cl. Jearrad v. Bannister et al. 7 M. & W. 292; Raggett v. Beaty, 2 Moore & P. 512; Parkman v. Bowdoin et al. 1 Sumner, 359; Wood v. Baron, 1 East, 259; Broadhurst v. Morris, 2 B. & Ad. 1; Nightingale v. Burrell, 15 Pick. 104; Joe d. Jones et al. v. Javies, 4 B. & Ad. 43; Joe d. Comberback v. Perryn, 3 T. R. 493.</p> <p>This, as the above authorities show, would be tbe construction of this will aside from the power to sell contained in this clause, and this power to sell (confused as it is) strengthens, if it does not necessitate the construction. -And by the concurrence of the present complainants, Elizabeth Sutton as life tenant, and Albert F. Sutton as the next immediate tenant in tail, this estate tail may now be barred. Groodtitle v.- Juke of Chanclos, 2 Burr. 1065; Holland v. Cruft, Administrator, et al. 3 Gray, 184.</p>

<p>Action of trespass and ejectment, brought at a special Court of Common Pleas, held at Providence, on the thirteenth of July, 1872, for the recovery of the possession of certain premises, in Central Falls, R. I. The plaintiffs claimed that the defendant was a yearly tenant, and served a notice upon him to quit on or before July 1,1872. The defendant came into possession and occupation of the premises in question by virtue of a written lease to him dated July 1st, 1870, from Dudley Walker, the plaintiff’s grantor. In October, 1871, Walker sold the premises to the plaintiffs, while the defendant was occupying the same under this lease. The defendant continued to occupy the premises under the provisions of the lease, no other contract of any kind having been made with the plaintiffs relating to this tenancy. The other facts of the case, as well as the plaintiffs’ exceptions to the rulings of the judge presiding at said special court, upon which the case was now heard, are stated in the opinion of the court.</p> <p>in support of the exceptions. I. The lease not having been acknowledged in accordance with sec.. 2, chapter 146, of the Revised Statutes, created a yearly tenancy, which could be terminated by giving three months’ notice to defendant to quit at the end of the year.</p> <p>II. If the lease can be construed to have created a tenancy at will or a tenancy at will with a conditional limitation, that tenancy could be terminated by notice from the plaintiffs to the defendant to quit. Rev. Stat. chap. 205, § 1.</p> <p>III. The plaintiffs gave the defendant notice on the 23d day of March, A. D. 1872, to quit the premises July 1st, A. D. 1872, and the defendant’s tenancy terminated thereby on said first day of July ; the defendant at that time having completed a year’s tenancy.</p> <p>IV. If the court construe it to be a tenancy at will or at will with a conditional limitation, the notice given was sufficient to terminate the tenancy.</p> <p>The tenancy of the defendant in this case was a tenancy at will with a conditional limitation, and determined only upon the happening of the contingency, namely, whenever the building referred to should be removed from its location. Ashley v. Warner et al. 11 Gray, 43 ; Goole v. Bisbee, 18 Pick. 527; The Fifty Associates v. Howland, 11 Met. 99.</p>

<p>Under the provisions of the statute (Rev. Stat. chap. 40, § 11), requiring a 'collector of taxes before selling an estate for non-payment of taxes to advertise the sale for three weeks in some newspaper printed in the town, held, that publication of notice of such sale in a daily newspaper printed in said town, on Monday and Thursday of each week for three successive weeks, was a compliance with the terms of the statute.</p> <p>Parol evidence that a collector of taxes made a return of his proceedings into the city clerk’s office ten days after sale of an estate for taxes, as required by chap. 40, § 15, of the Revised Statutes, held admissible.</p> <p>Where a party claimed title under a deed made by a collector of taxes, it was held that the return so required need not be a return of all the proceedings of the collector; and where a collector of taxes omitted to state in his return the fact of the advertisement or notice required by the statute, or the amount for which it was sold, or that it was sold to the highest bidder and to the plaintiff, it was held that the omission in the collector’s return did not invalidate the deed, provided the party so claiming should prove in some way that the collector had done every act required of him by the statute which was necessary to give him authority to convey the estate.</p> <p>Where an estate was owned by several heirs, and a collector of taxes levied upon the entire estate and advertiséd it for sale for non-payment of taxes, and gave notice of the levy as required by Rev. Stat. chap. 40, § 12, to only one of the heirs, it was held, that the sale was void for want of notice to the other heirs. Semble, that had the collector levied only on the interest of the heir who was notified, and advertised his interest for sale, the sale would have been good.</p>

<p>Where the charter of a railroad corporation requires it, if their road shall cross any highway, so to construct the same as not to impede and obstruct the safe and convenient use o£ said highway, and empowers them to raise or lower said highway, so that the railroad if necessary may conveniently pass under or over it, the crossing by it of a highway at the same level is not in itself a nuisance to the highway, nor evidence of a nuisance. A court of equity will restrain said railroad corporation by injunction from such a crossing only when it unreasonably impedes or obstructs the safe and convenient use of the highway.</p>

<p>Where a trustee of the property of a married woman has been appointed under the provisions of chap. 136 of the Revised Statutes, his trust ceases with the termination of the coverture by the death of the husband, and where, in an action of ejectment brought by such a trustee, the defendant, pending the action, pleaded puis darrein, the death of the husband of the cestui, it was held, that the right of the trustee to maintain the action had ceased, and judgment must be entered for the defendant.</p> <p>Meld, further, that the plaintiff would not have been subjected to costs, had he submitted to the plea, but that having contested it, the defendant could recover of him the costs of the suit from the time it was pleaded.</p>

Action for partition of a certain piece of land described in the declaration as 16 acres and 44 rods of land, “ whereof Phebe Pike died seised,” plaintiff averring that it appertains to him to have one fourth and the defendant three fourths part thereof.

<p>Assumpsit by the collector of taxes of the town of West Greenwich, to recover a tax of $396, alleged to have been assessed upon the property of the defendant located in said town. A jury trial having been waived, the case was submitted to the court both in fact and law. The facts are stated in the opinion of the court.</p>

Bill in equity to redeem a mortgage, and to secure a balance of account claimed to be due the complainant. The former proceedings in the case are reported in Vol. IX. R. I. Reports, at page 401.

Bill in equity to foreclose two mortgages upon land belonging to one Eliza H. Day.

Petition for tbe enforcement of a lien under chapter 150 of the Revised Statutes, entitled “ Of the Lien of Mechanics.” The facts of the case and the grounds upon which the lien was claimed appear in the opinion of the court.

Bill in equity to set aside a sheriff’s sale of a farm in Lincoln, E. I., and a mortgagee’s sale of another tract of land in the same town. The facts of the case are stated in the opinion of the court.

Trespass for driving, chasing, and worrying the plaintiff’s cattle, and illegally distraining and shutting up the same.

Bill in equity, to obtain the instructions of the Supreme Court as to the powers and duties of William M. Bailey, as trustee under a deed of trust originally made by Tristam Burges to Charles S. Bradley, under which the said William M. Bailey had been appointed trustee upon the resignation of the said Bradley. The case was first argued and determined at the March Term, 1871, of the court for this county.

<p>Bill in equity. The bill in substance charged uthat the defendant made a contract with the plaintiff, under which he was liable to account for and pay over to the plaintiff five per cent, of the profits of Mills Nos. 2, 3, and 4, in Woonsocket, belonging to the defendant, yearly and at the close of each year from and after January 1, 1864; that the plaintiff was under said contract in no way liable for losses in said business ; that large profits had accrued under said contract; that defendant had never accounted for or paid over any portion of such profits; that the plaintiff was wrongfully discharged from his employment as superintendent of said mills in May, 1870 ; that the defendant had promised to cancel one of the three mortgages recited in the bill, and procured one of them by violence and fraud. The bill prayed for an account, for payment of two mortgages out of profits alleged to be due the plaintiff, for cancellation of the third mortgage, for injunction against sales under said mortgages, and for general relief.</p> <p>The answer denied the allegations of the bill, and set forth a contract determinable at the will of either party, by which the plaintiff was to receive five per cent, of the profits of said business over its losses, from and after January 1st, 1865, until the termination of said contract, and averred that there were no profits.</p> <p>The case was formerly heard at; the March Term, 1871, of the Supreme Court for this county, when, after consideration, it was ordered that a decree be entered dismissing the bill, whereupon the complainant moved for a rehearing, and the case was again heard upon his motion at the present term.</p>

said that the city had already taken measures to declare the land a public highway by user, and also appointed a committee to lay the sewer through it, if private property; but the court said the city might suspend these proceedings at any time, and leave the complainants to further litigation, if there was no stipulation. said they were ready to comply with the conditions.

Action of covenant to recover damages for a breach of covenant of quiet enjoyment given by the defendants’ ancestor. The facts of the case and the defences to the action relied on by the defendants are stated in the opinion of the court.

Appeal by the overseer of the poor of the town of North Smithfield from an order of the town council of Smithfield, directing the removal of one Daniel Hutchinson, a pauper, from said town to North Smithfield, on the ground that he had a legal settlement in the latter town.

<p>The only notice to creditors required to be given by a bankrupt before applying for his discharge, is the one prescribed by section 29 of the U. S. Bankrupt Act; and where it appears that such notice was properly given, the court will sustain the validity of a discharge, without inquiring whether the notice required by section 11 of the act to be given by the bankrupt to his creditors to come in and prove their claims, was properly given or not.</p> <p>Such a discharge, after the notice prescribed by said section 29 has been properly given, is a bar to the claim of a foreign creditor who has brought a suit and obtained judgment in one of the courts of the United States.</p>

<p>Asshmpit for money alleged to have been had and received by the defendant to the use of the plaintiff. A jury trial having been waived, the case was submitted to the court both in fact and law. At the trial it appeared that the plaintiff was the widow of one Luther Pearson, who bequeathed to her by his will the income and dividends of certain bank stocks during her life. The defendant, who was the executor of his will, having paid the taxes assessed by the city of Providence on these stocks, deducting them from the dividends, the plaintiff brought this action to recover the sums thus deducted, claiming that under the will she was entitled to receive the entire income from the stocks without any abatement or diminution. The bequest was made by the sixth clause of the will of Luther Pearson, the portions of which involved in this case were as follows: —</p> <p>“ Sixth. I give and bequeath to my wife Charlotte C. Pearson .... the dividends and income of sixty-one shares of stock in the Phenix National Bank, of Providence; also the dividends or income of forty shares of stock in the Globe N ational Bank, of Providence; also the dividends or income of ten shares of stock in the Second National Bank, of Providence; also the dividends or income of twenty shares of stock in the Commercial National Bank, of Providence. All the foregoing bequests in this will are made to my said wife during the term of her natural life or so long as she shall remain my widow, and in lieu of her right of dower and power of thirds, and upon condition that she releases her right of dower in all my estate.”</p>

<p>A lease of factory property contained a proviso that “in case the buildings on said premises or any part thereof shall be destroyed or damaged by accidental fire or other unavoidable casualty so that the same shall be rendered unfit for use and occupation, then; and in such case, the rent reserved, or a just and proportionate part thereof, according to the nature and extent of the injury sustained, shall be abated until the said premises shall have been duly repaired and restored by the lessor, his heirs, and assigns.” Two steam-boilers upon the leased premises, while in use under a low steam pressure, and with a moderate fire, gave way so completely, that they had to be replaced by others, and the factory could not be run for three weeks, until they were replaced. Held, the lease containing no covenant on the part of the lessor to repair the boilers, that he would not be liable for any of the expense of replacing them, unless by virtue of some promise to that effect made outside the lease, and that a liability thus incurred could not be set up by way of recoupment against an action for the rent accruing under the lease, but that the lessees must sue the lessor in a separate action.</p> <p>Held, further, that the rupture of the boilers was an “unavoidable casualty,” within the meaning of the proviso of the lease, and that the lessees were therefore entitled to an abatement of the rent during the three weeks spent in replacing them.</p>

Two APPEALS to the Court of Common Pleas for the county •of Providence, from the proceedings of the town council of the town of North Providence, ordering the layout of a new highway R from the terminus of Fountain Street in said town, to the city R of Providence, and adjudging damages thereon.

<p>S. sold and delivered to W. on Sunday a pair of horses for $340. On the following Tuesday, W. paid $200, and gave a note for $140 on which S. afterwards brought suit. Held, that although the contract was originally made on Sunday, the plaintiff was entitled to recover, by reason of its subsequent ratification, and also by reason of a new promise, for which the retention of the property was a sufficient consideration.</p>

<p>* Bill in equity to enjoin a sale by the respondent, as collector of taxes of the town of North Providence, of the complainant’s property for non-payment of taxes. The facts of the case, which was now heard upon the respondent’s demurrer to the bill, are stated in the opinion of the court.</p>

<p>Appeal from tbe Court of Magistrates of tbe city of Providence. Tbe defendant was there tried upon a criminal complaint brought by John M. Knowles, Chief of Pobce of said city, which charged that the defendant “ at said Providence, in said county, on fhe 24th day of July, A. D. 1872, with force and arms did sell and suffer to be sold, and not for the purpose of exportatation, ale, wine, rum, and other strong and malt liquors, and mixed liquors, a part of which was ale, wine, rum, and other strong and malt liquors, without license first had and obtained from the mayor and board of aldermen of said city, against the statute and the peace and dignity of the state.” The defendant having been adjudged guilty upon the trial in said court, appealed to the Court of Common Pleas for this county, at its September Term, 1872, where, after trial and conviction before Mr. Justice Burges and a jury, the defendant moved in arrest of judgment for the following reasons: 1st. That no crime or of-fence punishable by law is sufficiently charged or alleged in the complaint in this case to put the defendant to answer the same, or to warrant a judgment against him. 2d. That as matter of law the defendant ought not to have been found guilty upon the complaint in this case, because it is not anywhere expressly alleged in and by said complaint that the “ ale, wine, rum,” $c., in and by said complaint alleged to have been by said defendant sold and suffered to be sold, were sold in violation of law. 3d. That it is not in said complaint alleged that said “ ale, wine, rum, and other strong and malt liquors,” &c., alleged to have been by defendant sold and suffered to be sold, were not “ spirituous or intoxicating liquors of foreign production imported under tbe laws of tbe United States, and contained in tbe original packages in which such liquors were imported, and in quantities not less than the laws of the United States prescribe. 4th. That the said complaint does not in and by its terms sufficiently negative the presumption that said “ ale, wine, rum,” &c., alleged in said complaint to have been by defendant sold and suffered to be sold, were sold in accordance with the laws of this state and of the United States.</p> <p>The court having overruled the motion, the defendant thereupon alleged exceptions.</p> <p>in support of the exceptions. The complaint is fatally defective because it does not in express terms nor by implication, allege a violation of law. Every word of the charging part of the complaint might be true, and yet the respondent might be innocent of any offence against law. The complaint, to be sustained, should contain an express averment that the alleged sale was made in violation of law (e. g. “ illegally,” “ in violation of law,” or “ without legal appointment or authority,” or words of the same or similar import), or else it should recite all the facts and circumstances necessary to. define the offence, or to constitute a violation of law. And in this latter respect it should expressly negative all exceptions in the enacting clause of the statute, and all exceptions so incorporated with the enacting clause that one cannot be read without the other. Rev. Stat. chap. 78, §§ 1 and 14; Mass. Digest, vol. 2, p. 22, pars. 244, 245, 248, 249, and cases there cited; pp. 656, 657, pars. 117 and 126 ; State v. Me Crlynn, 34 N. H. 422; Hincldey v. Penobscot, 42 Maine, 89; Bone v. State, 18 Ark. 109; State v. Benelee, 9 Iowa, 203; State v. Abbott, 31 N. H. 441; 1 Whart. Criminal Law, § 379 ; State v. Puller, 33 N. H. 259 ; Com. v. Clifford, 8 Cush. 217; Sedgwick on Stat. and Const. Law, §§ 62, 63.</p> <p>The merely formal conclusion, “ against the form of the statute,” is not a sufficient averment that the alleged sale was made in violation of law. Brown v. Commonwealth, 8 Mass. 65, and cases cited; State v. Casey, 45 Maine, 435.. A defective description of the offence sought to be charged is not one of the points in which a complaint is cured by a verdict; but tbe same is equally fatal on a motion to quash, or a motion in arrest of judgment. New-comb v. State, 37 Miss. 383 ; State v. Abbott, 31 N. H. 441.</p> <p>1. This offence is set forth in accordance with the well</p> <p>settled rules of statutory pleading. 1 Whart. Crim. Law, § 364 ; 1 Bishop Crim. Prac. §§ 359, 378; 1 Chitty Crim. Law, 283, 284; State v. Me Glynn, 34 N. H. 422, 426; Oom. v. Bart, 11 Cush. 130; Com. v. Bdwards, 12 Cush. 187 ; Com. v. Tuttle, 12 Cush. 502.</p> <p>2. Nor is it necessary to charge that the defendant did illegally sell. The act of selling was unlawful. Bex v. Phillips, 6 East, 474; Bex v. Fuller, 1 B. & P. 186, 187; Bex v. Farrington, Russ. & Ry. 207.</p> <p>3. Nor is it necessary that the defendant should know that the liquors sold were intoxicating. Com. v. Boynton, 2 Allen, 160; Gobi. v. Goodman, 97 Mass. 117.</p>

Bill in equity. The facts of the case, which now came before the court on the respondents’ motion to dissolve a preliminary injunction previously granted, are stated in the opinion of the court.

<p>A town is bound under the provisions of General Statutes, chap. 65, not only to relieve and support all poor and indigent persons lawfully settled in such town, but also to afiord temporary relief to such persons having no settlement there; but a town is not liable to an individual for the expense of relief furnished by him to such a person without the request of the overseers of the poor, although she became sick and needed immediate help before the overseers could be applied to.</p>

<p>Where in the trial of a criminal complaint the defendant has been acquitted by a jury, a new trial cannot be granted on the ground of error on the part of the judge presiding at the trial, consistently with the provision of art. 1, sec. 7, of the Constitution of Rhode Island, that “ no person shall, after acquittal, be tried for the same offence,” or with the common law rule, that “ no person shall be subject, for the same offence, to be twice put in jeopardy of life and limb.”</p> <p>The only exception provided for by Gen. Stat. chap. 20D, § 10, to the rulings of the judge presiding at the trial of a criminal complaint before a jury, are exceptions taken on behalf of the defendant.</p>

These were two bills in equity to set aside two conveyances as fraudulently obtained. Tbe causes were heard upon tbe complainant’s exceptions to tbe answers of tbe respondent. Tbe bills severally alleged that conveyances of two estates in East Greenwich, R. I., bad been fraudulently obtained by tbe respondent from one Jpb Manchester and Susannah Manchester bis wife. Tbe complainant claimed tbe estates as sister and heir at law of tbe said Susannah Manchester.

<p>Appeal from a decree of the Court of Probate of the town of Warwick, allowing the account of William Butler, as administrator upon the estate of Henry Butler, deceased. The facts of the case are stated in the opinion of the court.</p>

<p>Where a suit at law is brought upon a bond by one to whom it has been assigned, the defendant may plead as a set-off any matter within the statute of set-off, and the assignee is subject to it. If the plaintiff seek to enforce the bond by a suit in equity, the defendant has the same right to set off, and the court will administer the statute as it would be done at law.</p> <p>A demand, to be the subject of set-off, must be liquidated, and the amount ascertained and settled, or ascertainable by calculation. A claim for services, and to have therefor so much as the party reasonably deserved to have or the services are reasonably worth, is not a claim of which a set-off can be allowed under the statute.</p> <p>A bond executed in New York, where the rate of interest allowed by law is seven per cent, per annum, which provides for interest at that rate, is not void for usury because the obligee took as cash in'part consideration for the obligation, certain city bonds at par, which he afterwards sold for less than the face, when there is no evidence that the parties supposed at the time it would be necessary, or that it was in fact necessary after-wards, so to sell them.</p>

<p>A devise in the following words, “It is my will that the house I now own in Providence, together with the furniture, I give to my daughter, L. E. B., during her life, and at her decease I bequeath it to her oldest male heir ; but in case there should be no male heir, then the estate to be equally divided among her surviving heirs,” vests an estate tail in the said L. E. B.</p>

<p>A deed of a lot of land’to C. described it as follows: “ One certain lot of land, situated on the south side of W. Street, and bounded northerly by said street, on which it measures forty feet, extending back southerly, holding its width of forty feet, one hundred and twenty feet, more or less, to a contemplated gangway, being lot No. 120, on a plat,” &c., “ excepting so much as is contemplated to be taken from the south end of said lot for the aforesaid gangway, not exceeding seventeen feet from south to north.” Held, that said deed did not embrace in the description of the granted premises the strip of land which was contemplated to be taken for a gangway, and that C. acquired no title to it by said deed, unless it were a right to use it as a gangway, if laid out as such.</p>

Bill in equity for partition. The bill in substance alleged that the parties are tenants in common of a valuable real estate, with a large three story dwelling-house, barn, and other improvements thereon, situate in the city of Providence; that the estate came by devise under the will of Elisha Dyer, deceased, the late father of the complainants Elisha Dyer and Caroline Lyman, and the respondent Frances J. Vinton, and was the homestead estate of the testator, upon which he…

<p>Action oe the case for deceit in inducing the plaintiffs to sell their stock in the Commercial Insurance Company for less than its real value. The facts of the case, which were submitted to the court both in fact and law, a jury trial having been waived, are stated in the opinion of the court.</p> <p>cited Smith v. Countryman, 30 N. Y. 655; Kerr on Fraud & Mistake, pp. 31, 84, 87, 94, 143,150, 385, 386.</p> <p>cited Irvine v. KirJepatricJe, 3 Eng. L. & E. 17 (note); Eaidlaw et al. v. Organ, 2 Wheat. 178; Kintzing v. MeElrath, 5 Pa. State, 467 ; Shrewsbury v. Blount et al. 2 Scott N. S. 588; Setzar v. Wilson et al. 4 Ired. 501; Vernon v. Keys, 12 East, 632 ; Earnam v. BrooJcs, 9 Pick. 213; Wason v. Wareing, 15 Eng. L. & E. 121;. 2 Pars, on Cont. p. 275 (4th ed.) ; Hammett v. Emerson, 27 Maine, 308; Sanford y.. Handy, 23 Wend. 260.</p>

Bill in equity for specific performance of a contract for the sale of real estate. The case was heard upon the respondent’s general demurrer to the bill, the allegations of Avhich are stated in the opinion of the court. in support of the demurrer.

At the trial of the appeal at the March Term, 1873, of the Supreme Court for this county, before Mr. Justice Durfee and a jury, a'verdict was rendered against the will, whereupon the appellee alleged exceptions to the rulings of the presiding judge, and to his charge to the jury, and moved for a new trial. The exceptions are sufficiently stated in the opinion of the court.

<p>H. in his will, after directing the payment of his debts and expenses and making a bequest of furniture and household goods, bequeathed to L. $25 per month during her life, and further provided as follows: “ After the decease of the said L. the residue of my properly shall be divided among my legal heirs.” Held (the personal estate having been exhausted in the payment of debts and expenses, and nothing remaining to satisfy the legacy to L. except certain real estate and a sum of money, part of the proceeds of a sale of real estate for payment of debts), that the legacy was a charge upon said money and upon the real estate remaining unsold.</p>

Bill in equity to enjoin the respondent Samuel W. Peck-ham, as administrator of the estate of Henry C. Pabodie, deceased, and Olive G. Pettis, from selling the complainant’s real estate in Providence under a mortgage made by him, and to obtain a decree for the cancellation of the mortgage on the ground that said Pabodie before his decease surrendered the claim and ordered the notes to be returned and the mortgage cancelled.

Petition for a writ of mandamus. The petition prayed that a writ of mandamus might be issued to Samuel W. Peckham, Esq., one of the standing masters in chancery of this court, commanding him to issue writs of attachment against certain witnesses, namely, James O. Swan and William S. Briggs, to compel their attendance before him, the said master, for the purpose of giving testimony in perpetual memory, to be used as evidence in any court in this state, in any civil suit or…

<p>Where property was vested in a trustee for the benefit of a cestui que trust, and if appeared that the cote', who had been a femecovert when the trust was created, was now sui juris, and that no person was interested in the trust property except the cestui que trust and the trustee, who was willing to convey to her if he properly might, held, that the cestui, who had the entire equitable, should, if she desired, also have the legal estate, and that (affirming Baton v. Tillinghast, Trustee cf others, 4 R. I. 276) the court would, at her request, decree a conveyance of the trust property to her, free from the trust.</p>

<p>An act of the general assembly extending the territorial limits of a fire district is not invalid because notice of the pendency of such act was not given to the parties embraced in the part of the district so added, in conformity with chap. 18, § 1, of the General Statutes, such notice not being requisite for the enlargement of a fire dUtrict, which is the act of the general assembly in the exercise of its supreme legislative power.</p> <p>Although, as held in Greene v. Muviford, 5 K. I. 472, and in Sherman v. Leonard, 10 R. I. 469, the Supreme Court, as a court of equity, will not enjoin the collection of a tax on the mere ground that it has been improperly assessed against the complainant (the validity of the assessment on him only being involved), and that his esiate has been levied upon and is about to be sold for its satisfaction, but will refer the complainant to his remedies at law: it will neverthless assume jurisdiction of a bill to enjoin the collection of a tax, where the question involves the validityof the whole tax, and its assessment upon every person taxed.</p> <p>A tax assessed upon the members of a fire district is binding upon members included in such d;strict by an act of the general assembly, extending its territorial limits, which takes effect after the passage of the vote to assess such tax, but before the time at which it was voted that it should be assessed.</p> <p>A repeal of the act enlarging the district, passed after the assessment of the tax, does not avoid or annul the vote and order levying the tax and the assessment thereof, inasmuch as by the provisions of the General Statutes, chap. 22, § IG, the repeal of a stalute is not to affect any right accrued under the statute repealed befo.-c such repeal took effect.</p> <p>:Richard v. Daggett et al. 4 Mass. 534, stated and distinguished.</p>

Petition for a determination of the value of the lands of the petitioners, taken by tbe water commissioners of the city of Providence, under tbe provisions of chapter 640 of tbe Statutes. Tbe petition alleged that tbe petitioners bad not agreed with tbe city or with tbe water commissioners upon tbe price to be paid for their lands so taken, and prayed that tbe same might be determined as provided for by said chapter 640 of tbe Statutes.

Assumpsit to recover the sum of $2,500, alleged to be due on a promissory note signed by tbe defendant. The case was heard upon the plaintiffs’ demurrer to the defendant’s plea in abatement. The facts of the case are stated in the opinion of the court.

<p>Assumpsit to recover the amount of certain promissory notes made and signed by defendant, bearing date at different times and payable on demand to plaintiff, all of which except two bore this indorsement, or words to the same effect, “ To be paid according to contract.” The plaintiff’s demurrer to a special plea in bar of the defendant having been sustained (see report of the case in 9 R. I. 137), the case was tried upon the defendant’s plea of the general issue at the October Term of this court for this county, 1868, before Mr. Justice Durfee and a jury, when the defendant offered parol evidence to prove that the contract referred to on said notes was the contract set out in the overruled plea, namely, that the plaintiff’s intestate, by a certain written instrument, agreed to give further time to defendant for the payment of rents due and to become due from defendant to plaintiff for the use of a certain mill, and that such rents should be payable by instalments when said mill could (and not until it could) be run to profit, and that said mill could not have been run to profit until after the death of plaintiff’s intestate, and that the defendant was- deprived of the use of said mill by plaintiff, and ■thus prevented from paying said rents according to contract, and that the said notes declared on were given for said rent, subject to •the provisions of said agreement. The court ruled the evidence inadmissible, and a verdict was rendered in favor of the plaintiff for $3,361.49, whereupon the defendant alleged exceptions and moved for a new trial.</p> <p>in support of the motion, cited 1 Greenl. Ev. §§ 282, 288, and cases cited.</p> <p>I. The notes are complete and perfect in themselves, and there is nothing in the indorsements contradictory to or in alteration of the notes, or the contracts thereby evidenced. Hence, as there is no ambiguity whatever, parol proof cannot be admitted to contradict, vary, alter, or explain them. Child v. Wells, 13 Pick. 271; Shanks land v. Washington, 5 Pet. 390 ; Arnold v. Staekpole, 11 Mass. 27; Spring V. Lovett, 11 Pick. 420. Indeed so universal is this rule that no averment even is admissible that contradicts a written instrument. United States v. Thompson, 1 Gall. 388.</p> <p>II. It is not competent to show by parol that one written instrument is altered or superseded by another. Shankland v. Washington, 5 Pet. 390; Dunlap v. Munroe, 7 Cranch, 242 ; Wilsenberger v. Harmony Ins. Oo. 56 Pa. State, 442.</p> <p>III. Parol evidence is admissible to prove the contents of promissory notes that are lost. Jones v. Pales, 5 Mass. 101.</p> <p>IV. A new trial will not be granted where it is evident that the verdict must be the same', for it is for the interest of all that there should be an end of litigation. The opinion of the court, in sustaining the demurrer to defendant’s special plea, shows conclusively that even if admitted in evidence the verdict ought to be the same as it is, namely, for plaintiff.</p>

Bill in equity to obtain tbe rescission of a contract of sale of land, upon tbe alleged ground of mutual mistake. Tbe proceedings in tbe case are so connected together that it bas seemed best to report tbem all together as of this term, although tbe first two of the opinions hereafter set forth were delivered at tbe September Term, 1871, and tbe March Term, 1872, respectively, of tbe Supreme Court for this county.

<p> Dissenting Opinion of Mr. Justice Potter. </p> <p>Note. — The opinion of the majority of the court in the above entitled case will be found reported in 9 R. I. Reports, at page 528. The head-notes to the case as there reported are as follows : —</p> <p>If one having no title to land, conveys the same with warranty to A. by a deed which is duly recorded, and he afterwards acquires a title and conveys to B., the purchaser of B. is estopped to aver that the grantor was not seised at the time of his conveyance to A., the first grantee. The after-acquired title will feed the estoppel created by the conveyance to A., and conclude the grantor and all persons claiming under him. And this, although the deed to A. was a deed poll, notwithstanding the obiter dictum in Gordon v. Greene, 5 R. 1.104.</p> <p>The right of the purchaser of A. to insist on the estoppel is not impaired by admitting, in an action for the possession of the land, that A.’s grantor had no title when he conveyed to him.</p> <p>At the time that volume was published, the dissenting opinion of Judge Potter had been mislaid, and could not be found ; but having since been found, it is now published here. — Reporter.</p>

<p> Decision of a Judge of the Supreme Court, on an appeal to the School Commissioner. </p> <p>An appeal lies to the Commissioner of Public Schools from the location of a school-house by a school committee, and the commissioner may confirm or reverse the same, or make a new location.</p> <p>Until his decision is confirmed by a judge of the Supreme Court, the commissioner may rehear the case. After such confirmation it is final in that case; and another location can only be made on entirely new proceedings.</p> <p>On a hearing before the judge, the judge will decide only points of law, all matters of fact being stated by the commissioner.</p>